Heritage v. Hall , 1861 N.Y. App. Div. LEXIS 14 ( 1861 )

By the Court,

Ingraham, J.

Ordinarily, in questions of this kind, the submission of the evidence to the jury, and their finding upon it, is conclusive upon the parties. Courts are not to weigh the evidence as the jury does, and then say whether the verdict of a jury is in accordance with the opinion of the court. It is only where the verdict is clearly against the evidence, so that the court is led to the conclusion that the jury was improperly controlled by passion or prejudice, that the court should interfere. Where it is evident that the jury have mistaken the import of the testimony, and have done wrong by their verdict, the court may in like manner interfere.

It is to be regretted, in this case, that neither party has seen fit to submit to the court, upon the trial of the case, the accounts of the parties as to other transactions. From the defendant’s statement to the plaintiff he had a book in which the account of the indebtedness was kept, and which account he submitted to the plaintiff when she inquired as to the account. It also appears that the defendant, Charles Hall, drew up the copy of the bill of sale, and was present when it was given to the plaintiff. Ho thing was said at that time as to the payments, and moneys were paid on account without objection.

It is true that the receipts were evidence of the payment of money on this account, in the absence of proof that there was any other account between the parties; and I am free to say that the receipts proven in this case, if signed by the intestate, (of which I suppose there is no doubt,) furnish very strong testimony of payment; and that more especially where there is nothing to contradict the written evidence but mere conversations, proven as admissions by the defendant—a species of evidence, considered as unsatisfactory and dangerous. Still I am inclined to think the rule before referred to, controls this case. The question was fairly submitted to the jury. It was purely a question of fact. It depended on questions of credibility, as well as other matters, and the jury bad all the parties before them, and were able to judge more correctly than we can from a mere statement of the testimony. Although a verdict in accordance with the receipts would have been more satisfactory to me, still we may not for that reason interfere with this verdict.

[New York General Term, February 4, 1861.

Clerke, Sutherland and Ingraham, Justices.]

■ The evidence of the defendant, Charles Hall, was offered, to prove the receipts to have been signed by the intestate, and excluded. Such exclusion was proper, under the provisions of the code, as the action was brought by an administrator. The objection, if taken, might have been extended much further.

The judgment appealed from is affirmed with costs.